Can ISPs that receive National Security Letters legally be prevented from …

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Nearly four years after a federal judge first ruled that law enforcement agencies cannot unilaterally impose gag orders on companies served with National Security Letters, the American Civil Liberties Union is still fighting for the right to reveal the name of its own client. In oral arguments before the Second Circuit Court of Appeals last week, ACLU attorneys urged a three-judge panel to uphold a district court ruling that struck down a provision of the PATRIOT Act allowing the FBI, without a court order, to bar Internet Service Providers from speaking about requests for records.

According to Jameel Jaffer, the group's lead counsel in the case of Doe v. Mukasey, oral arguments originally scheduled to last 15 minutes stretched on for nearly two hours as judges probed the limits of their discretion to interpret the statute in a way that might pass constitutional muster. The current appeal follows a 2007 ruling by federal judge Victor Marrero, who found that provisions of the PATRIOT Act allowing the FBI to demand records via National Security Letters and forbid the parties served from discussing them were at odds with both the First Amendment and the traditional role of the courts under the American system's separation of powers.

That marked the second time Marrero had occasion to rule against the use of National Security Letters; the first was in 2004. After that decision, however, Congress modified the NSL provision, prompting the second review. While the initial rulings concerned both the Fourth and First Amendment infirmities of NSLs, the FBI dropped its request for records from the ACLU's secret client, an Internet Service Provider, over a year ago. This appeal, therefore, concerns only the gag order that accompanied that initial request—which remains in effect.

The judges, Jaffer told Ars, seemed sympathetic to the argument that even the amended statute, which now provides a mechanism for parties served with NSLs to challenge the orders up front, go too far in permitting agencies to permanently and unilaterally lower a cone of silence over target companies without prior judicial review. Because the law implicates fundamental First Amendment interests, imposing a content-based prior restraint on speech, it must withstand "strict scrutiny" to be found constitutional, meaning the judges must determine that such broad discretion is necessary to serve a compelling state interest, such as national security.

Facing an uphill battle, as Jaffer summarized the proceedings to us, government attorneys invited the court to construct (and, arguably, significantly reconstruct) the statute in a manner that would allow it to meet this standard. For example, the statute permits judges to set aside a gag order in the face of a challenge from an ISP if they find there is "no reason to believe" that disclosure could imperil an investigation, but it stipulates that courts should defer to the FBI's determination unless it finds that a certification of security risk was made in bad faith.

The government, said Jaffer, suggested that if this seemed too stringent to pass First Amendment muster, judges could interpret "no reason" somewhat more loosely, so as to impose a more significant evidentiary burden on the agency issuing the NSL. In short, the government seems to be hoping that, instead of simply striking the gag order provision, the court will simply specify the procedures that would have to be followed to make it constitutional.

Several questions were also directed at the issue of "severability." When a court finds that some portion of a statute offends the Constitution, it faces the further question of whether the offending portion is "severable," meaning that it can be invalidated while leaving the rest of the relevant law intact. The alternative might require the entire provision, or even an entire statute, to be struck down.

The ACLU has argued that Congress intended the gag orders to be an inextricable part of NSL requests under the PATRIOT Act, which would mean that if the courts determine the gag orders to be illegitimate, they should strike the NSL section of the law entirely.

The current case comes on the heels of repeated revelations of systematic and widespread misuse of National Security Letters. The explosive growth of NSL use since the passage of the PATRIOT Act, according to the Department of Justice's own internal investigations, has been accompanied by poor record-keeping, lax compliance with oversight rules, and improper requests for records. Critics say that these abuses, even if the result of honest mistakes, are a direct result of the secrecy surrounding the NSL process.

A decision in the case is expected within the next three to four months.